Law dean: 16-vote threshold not fixed, Senate has power to decide

MANILA, Philippines — San Beda University Graduate School of Law Dean Fr. Ranhilio Aquino said the 16-vote threshold for convicting Vice President Sara Duterte in her impeachment trial should not be treated as fixed, arguing that only senators who actually participated in the proceedings should be counted.

In a memorandum of law dated Sept. 7 and submitted to the Senate impeachment court, Aquino said the Constitution’s requirement of the “concurrence of two-thirds of all the Members of the Senate” must be read together with the provision granting the Senate the “sole power to try and decide all cases of impeachment.”

Aquino’s memorandum came as the Senate impeachment court is currently reviewing whether the 16-vote threshold set by Presiding Officer Francis “Chiz” Escudero should remain in place despite the absence of several senators from the proceedings, after Senator-Judge Erwin Tulfo’s challenge.

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The court this Wednesday is hearing from the amici curiae or friends of the court to guide senator-judges before they decide whether to overturn the ruling.

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Among the amici curiae are Retired Chief Justices Artemio Panganiban and Reynato Puno, retired Associate Justice Adolfo Azcuna, and former Chief Justice Hilario Davide Jr., with Davide submitting a legal memorandum.

READ: Amici curiae at hand, Senate impeachment court revisits vote threshold

While Aquino is not part of this, Escudero said Aquino’s arguments will be considered.

The senator-judges, defense, and the prosecution team will likewise be furnished copies of his position paper for their perusal as Aquino’s paper may be used by the two parties once they present their respective arguments on the threshold issue on Sept. 23, and to guide as well the senator-judges once they vote on the matter.

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Senate has authority to decide

Aquino, in his position paper, also maintained that the Senate itself has the authority to interpret the phrase “two-thirds of all its members” because the Constitution expressly gives it exclusive power over impeachment trials.

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The dean also rejected the suggestion that the question should simply be left for the Supreme Court to resolve, as some senators previously floated.

“The Senate shall have the sole power to try and decide all cases of impeachment,” Aquino quoted Article XI, Section 3(6) of the Constitution.

He said this provision gives the Senate not only the power but also the obligation to determine how the constitutional voting requirement should apply in an impeachment proceeding.

Aquino also cited the Senate’s impeachment trial rules, which provide that senators vote on each article of impeachment after hearing the case and participating in deliberations.

Under the rules, each senator is called by name and answers “guilty or not guilty.” Senators may also explain their votes.

“What is clearly presumed therefore is that the Senator voting is in the session hall of the Senate and took part in the deliberations thereof,” Aquino said.

“There can be nothing to explain if the senator concerned was never part of the deliberations,” he added.

On senators’ presence in trial

He questioned whether senators who were absent from the trial could fairly participate in the final judgement.

“If sixteen (16) were a fixed number for conviction, then the three absent senators – Mr. Bato de la Rosa, Mr. Jinggoy Estrada, Mr. Rodante Marcoleta and, lately, Ms. Loren Legarda – would be allowed to participate in a judgement in proceedings of which they were never part or, in the case of Ms. Legarda, only partially,” Aquino wrote.

According to him, a senator acting as a judge must have heard the witnesses, considered the evidence and arguments, and participated in deliberations before voting.

“And what that means is that for one to be able to render a judgment, or to cast a vote in a collegial body, one must have listened to the witnesses, observed their demeanor, paid heed to the arguments of counsel, perused documentary exhibits and participated in the deliberations leading to judgment.”

He further argued that maintaining a fixed 16-vote threshold would effectively allow absent senators to contribute to an acquittal without having participated in the trial.

“Every absent member would, in effect, be casting a vote of acquittal,” Aquino said, describing this as unfair.

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“The worst thing that can ever be said of any process – particularly of one partaking of the nature of a judicial process – would be to say that the result went one way rather than the way it should have gone because some of the judges were not present!” he concluded. /jpv